LegalizeDirective 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC Text with EEA relevance
| TITLE I: | SCOPE, DEFINITIONS AND GENERAL PRINCIPLES |
| CHAPTER I: | Subject-matter and definitions |
| Article 1: | Subject-matter and scope |
| Article 2: | Definitions |
| Article 3: | Contracting authorities |
| Article 4: | Contracting entities |
| Article 5: | Mixed procurement covering the same activity |
| Article 6: | Procurement covering several activities |
| CHAPTER II: | Activities |
| Article 7: | Common provisions |
| Article 8: | Gas and heat |
| Article 9: | Electricity |
| Article 10: | Water |
| Article 11: | Transport services |
| Article 12: | Ports and airports |
| Article 13: | Postal services |
| Article 14: | Extraction of oil and gas and exploration for, or extraction of, coal or other solid fuels |
| CHAPTER III: | Material scope |
| SECTION 1: | THRESHOLDS |
| Article 15: | Threshold amounts |
| Article 16: | Methods for calculating the estimated value of procurement |
| Article 17: | Revision of the thresholds |
| SECTION 2: | EXCLUDED CONTRACTS AND DESIGN CONTESTS; Special provisions for procurement involving defence and security aspects |
| Subsection 1: | Exclusions applicable to all contracting entities and special exclusions for the water and energy sectors |
| Article 18: | Contracts awarded for purposes of resale or lease to third parties |
| Article 19: | Contracts and design contests awarded or organised for purposes other than the pursuit of a covered activity or for the pursuit of such an activity in a third country |
| Article 20: | Contracts awarded and design contest organised pursuant to international rules |
| Article 21: | Specific exclusions for service contracts |
| Article 22: | Service contracts awarded on the basis of an exclusive right |
| Article 23: | Contracts awarded by certain contracting entities for the purchase of water and for the supply of energy or of fuels for the production of energy |
| Subsection 2: | Procurement involving defence and security aspects |
| Article 24: | Defence and security |
| Article 25: | Mixed procurement covering the same activity and involving defence or security aspects |
| Article 26: | Procurement covering several activities and involving defence or security aspects |
| Article 27: | Contracts and design contests involving defence or security aspects which are awarded or organised pursuant to international rules |
| Subsection 3: | Special relations (cooperation, affiliated undertakings and joint ventures) |
| Article 28: | Contracts between contracting authorities |
| Article 29: | Contracts awarded to an affiliated undertaking |
| Article 30: | Contracts awarded to a joint venture or to a contracting entity forming part of a joint venture |
| Article 31: | Notification of information |
| Subsection 4: | Specific situations |
| Article 32: | Research and development services |
| Article 33: | Contracts subject to special arrangements |
| Subsection 5: | Activities directly exposed to competition and procedural provisions relating thereto |
| Article 34: | Activities directly exposed to competition |
| Article 35: | Procedure for establishing whether Article 34 is applicable |
| CHAPTER IV: | General principles |
| Article 36: | Principles of procurement |
| Article 37: | Economic operators |
| Article 38: | Reserved contracts |
| Article 39: | Confidentiality |
| Article 40: | Rules applicable to communication |
| Article 41: | Nomenclatures |
| Article 42: | Conflicts of interests |
| TITLE II: | RULES APPLICABLE TO CONTRACTS |
| CHAPTER I: | Procedures |
| Article 43: | Conditions relating to the GPA and other international agreements |
| Article 44: | Choice of procedures |
| Article 45: | Open procedure |
| Article 46: | Restricted procedure |
| Article 47: | Negotiated procedure with prior call for competition |
| Article 48: | Competitive dialogue |
| Article 49: | Innovation partnership |
| Article 50: | Use of the negotiated procedure without prior call for competition |
| CHAPTER II: | Techniques and instruments for electronic and aggregated procurement |
| Article 51: | Framework agreements |
| Article 52: | Dynamic purchasing systems |
| Article 53: | Electronic auctions |
| Article 54: | Electronic catalogues |
| Article 55: | Centralised purchasing activities and central purchasing bodies |
| Article 56: | Occasional joint procurement |
| Article 57: | Procurement involving contracting entities from different Member States |
| CHAPTER III: | Conduct of the procedure |
| SECTION 1: | PREPARATION |
| Article 58: | Preliminary market consultations |
| Article 59: | Prior involvement of candidates or tenderers |
| Article 60: | Technical specifications |
| Article 61: | Labels |
| Article 62: | Test reports, certification and other means of proof |
| Article 63: | Communication of technical specifications |
| Article 64: | Variants |
| Article 65: | Division of contracts into lots |
| Article 66: | Setting time limits |
| SECTION 2: | PUBLICATION AND TRANSPARENCY |
| Article 67: | Periodic indicative notices |
| Article 68: | Notices on the existence of a qualification system |
| Article 69: | Contract notices |
| Article 70: | Contract award notices |
| Article 71: | Form and manner of publication of notices |
| Article 72: | Publication at national level |
| Article 73: | Electronic availability of procurement documents |
| Article 74: | Invitations to candidates |
| Article 75: | Informing applicants for qualification, candidates and tenderers |
| SECTION 3: | CHOICE OF PARTICIPANTS AND AWARD OF CONTRACTS |
| Article 76: | General principles |
| Subsection 1: | Qualification and qualitative selection |
| Article 77: | Qualification systems |
| Article 78: | Criteria for qualitative selection |
| Article 79: | Reliance on the capacities of other entities |
| Article 80: | Use of exclusion and selection criteria provided for under Directive 2014/24/EU |
| Article 81: | Quality assurance standards and environmental management standards |
| Subsection 2: | Award of the contract |
| Article 82: | Contract award criteria |
| Article 83: | Life-cycle costing |
| Article 84: | Abnormally low tenders |
| SECTION 4: | TENDERS COMPRISING PRODUCTS ORIGINATING IN THIRD COUNTRIES AND RELATIONS WITH THOSE COUNTRIES |
| Article 85: | Tenders comprising products originating in third countries |
| Article 86: | Relations with third countries as regards works, supplies and service contracts |
| CHAPTER IV: | Contract performance |
| Article 87: | Conditions for performance of contracts |
| Article 88: | Subcontracting |
| Article 89: | Modification of contracts during their term |
| Article 90: | Termination of contracts |
| TITLE III: | PARTICULAR PROCUREMENT REGIMES |
| CHAPTER I: | Social and other specific services |
| Article 91: | Award of contracts for social and other specific services |
| Article 92: | Publication of notices |
| Article 93: | Principles of awarding contracts |
| Article 94: | Reserved contracts for certain services |
| CHAPTER II: | Rules governing design contests |
| Article 95: | Scope |
| Article 96: | Notices |
| Article 97: | Rules on the organisation of design contests, the selection of participants and the jury |
| Article 98: | Decisions of the jury |
| TITLE IV: | GOVERNANCE |
| Article 99: | Enforcement |
| Article 100: | Individual reports on procedures for the award of contracts |
| Article 101: | National reporting and statistical information |
| Article 102: | Administrative cooperation |
| TITLE V: | DELEGATED POWERS, IMPLEMENTING POWERS AND FINAL PROVISIONS |
| Article 103: | Exercise of the delegation |
| Article 104: | Urgency procedure |
| Article 105: | Committee procedure |
| Article 106: | Transposition and transitional provisions |
| Article 107: | Repeal |
| Article 108: | Review |
| Article 109: | Entry into force |
| Article 110: | Addressees |
| ANNEXES | ANNEXES |
| ANNEX I: | List of activities as set out in point (a) of point 2 of Article 2 |
| ANNEX II: | List of Union legal acts referred to in Article 4(3) |
| ANNEX III: | List of Union legal acts referred to in Article 34(3) |
| ANNEX IV: | Deadlines for the adoption of the implementing acts referred to in Article 35 |
| ANNEX V: | Requirements relating to tools and devices for the electronic receipt of tenders, requests to participate, applications for qualification as well as plans and projects in contests |
| ANNEX VI Part A: | Information to be included in the periodic indicative notice (as referred to in Article 67) |
| ANNEX VI Part B: | Information to be included in notices of publication of a periodic indicative notice on a buyer profile not used as a means of calling for competition (as referred to in Article 67(1)) |
| ANNEX VII: | Information to be included in the procurement documents relating to electronic auctions (Article 53(4)) |
| ANNEX VIII: | Definition of certain technical specifications |
| ANNEX IX: | Features concerning publication |
| ANNEX X: | Information to be included in the notice on the existence of a qualification system (as referred to in point (b) of Article 44(4) and in Article 68) |
| ANNEX XI: | Information to be included in contract notices (as referred to in Article 69) |
| ANNEX XII: | Information to be included in the contract award notice (as referred to in Article 70) |
| ANNEX XIII: | Contents of the invitations to submit a tender, to participate in the dialogue, to negotiate or to confirm interest provided for under Article 74 |
| ANNEX XIV: | List of International Social and Environmental Conventions referred to in Article 36(2) |
| ANNEX XV: | List of Union legal acts referred to in Article 83(3) |
| ANNEX XVI: | Information to be included in notices of modifications of a contract during its term (as referred to in Article 89(1)) |
| ANNEX XVII: | Services referred to in Article 91 |
| ANNEX XVIII: | Information to be included in notices concerning contracts for social and other specific services (as referred to in Article 92) |
| ANNEX XIX: | Information to be included in the design contest notice (as referred to in Article 96(1)) |
| ANNEX XX: | Information to be included in the results of design contest notices (as referred to in Article 96(1)) |
| ANNEX XXI: | Correlation table |
TITLE I SCOPE, DEFINITIONS AND GENERAL PRINCIPLES
CHAPTER I Subject-matter and definitions
Article 1
Subject matter and scope
This Directive establishes rules on the procedures for procurement by contracting entities with respect to contracts as well as design contests, whose value is estimated to be not less than the thresholds laid down in Article 15.
Procurement within the meaning of this Directive is the acquisition by means of a supply, works or service contract of works, supplies or services by one or more contracting entities from economic operators chosen by those contracting entities, provided that the works, supplies or services are intended for the pursuit of one of the activities referred to in Articles 8 to 14.
The application of this Directive is subject to Article 346 of TFEU.
This Directive does not affect the freedom of Member States to define, in conformity with Union law, what they consider to be services of general economic interest, how those services should be organised and financed, in compliance with the State aid rules, and what specific obligations they should be subject to. Equally, this Directive does not affect the decision of public authorities whether, how and to what extent they wish to perform public functions themselves pursuant to Article 14 TFEU and Protocol No 26.
This Directive does not affect the way in which the Member States organise their social security systems.
The scope of this Directive shall not include non-economic services of general interest.
Article 2
Definitions
For the purposes of this Directive, the following definitions apply:
- (1) ‘supply, works and service contracts’ means contracts for pecuniary interest concluded in writing between one or more contracting entities and one or more economic operators and having as their object the execution of works, the supply of products or the provision of services;
- (2) ‘works contracts’ means contracts having as their object one of the following:
- (a) the execution, or both the design and execution, of works related to one of the activities within the meaning of Annex I;
- (b) the execution, or both the design and execution, of a work;
- (c) the realisation by whatever means of a work corresponding to the requirements specified by the contracting entity exercising a decisive influence on the type or design of the work;
- (3) ‘a work’ means the outcome of building or civil engineering works taken as a whole which is sufficient in itself to fulfil an economic or technical function;
- (4) ‘supply contracts’ means contracts having as their object the purchase, lease, rental or hire-purchase, with or without an option to buy, of products. A supply contract may include, as an incidental matter, siting and installation operations;
- (5) ‘service contracts’ means contracts having as their object the provision of services other than those referred to in point 2;
- (6) ‘economic operator’ means any natural or legal person, or a contracting entity, or a group of such persons and/or entities, including any temporary association of undertakings, which offers the execution of works and/or a work, the supply of products or the provision of services on the market;
- (7) ‘tenderer’ means an economic operator that has submitted a tender;
- (8) ‘candidate’ means an economic operator that has sought an invitation or has been invited to take part in a restricted or negotiated procedure, in a competitive dialogue or in an innovation partnership;
- (9) ‘procurement document’ means any document produced or referred to by the contracting entity to describe or determine elements of the procurement or the procedure, including the contract notice, the periodic indicative notice or the notices on the existence of a qualification system where they are used as a means of calling for competition, the technical specifications, the descriptive document, proposed conditions of contract, formats for the presentation of documents by candidates and tenderers, information on generally applicable obligations and any additional documents;
- (10) ‘centralised purchasing activities’ means activities conducted on a permanent basis, in one of the following forms:
- (a) the acquisition of supplies and/or services intended for contracting entities,
- (b) the award of contracts or the conclusion of framework agreements for works, supplies or services intended for contracting entities;
- (11) ‘ancillary purchasing activities’ means activities consisting in the provision of support to purchasing activities, in particular in the following forms:
- (a) technical infrastructure enabling contracting entities to award public contracts or to conclude framework agreements for works, supplies or services;
- (b) advice on the conduct or design of procurement procedures;
- (c) preparation and management of procurement procedures on behalf and for the account of the contracting entity concerned;
- (12) ‘central purchasing body’ means a contracting entity within the meaning of Article 4(1) of this Directive or a contracting authority within the meaning of point 1 of Article 2(1) of Directive 2014/24/EU providing centralised purchasing activities and, possibly, ancillary purchasing activities. Procurement carried out by a central purchasing body in order to perform centralised purchasing activities shall be deemed to be procurement for the pursuit of an activity as described in Articles 8 to 14. Article 18 shall not apply to procurement carried out by a central purchasing body in order to perform centralised purchasing activities;
- (13) ‘procurement service provider’ means a public or private body, which offers ancillary purchasing activities on the market;
- (14) ‘written’ or ‘in writing’ means any expression consisting of words or figures which can be read, reproduced and subsequently communicated, including information transmitted and stored by electronic means;
- (15) ‘electronic means’ means electronic equipment for the processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means;
- (16) ‘life cycle’ means all consecutive and/or interlinked stages, including research and development to be carried out, production, trading and its conditions, transport, use and maintenance, throughout the existence of the product or the works or the provision of the service, from raw material acquisition or generation of resources to disposal, clearance and end of service or utilisation;
- (17) ‘design contests’ means those procedures which enable the contracting entity to acquire, mainly in the fields of town and country planning, architecture, engineering or data processing, a plan or design selected by a jury after being put out to competition with or without the award of prizes;
- (18) ‘innovation’ means the implementation of a new or significantly improved product, service or process, including but not limited to production, building or construction processes, a new marketing method, or a new organisational method in business practices, workplace organisation or external relations, inter alia, with the purpose of helping to solve societal challenges or to support the Europe 2020 strategy for smart, sustainable and inclusive growth;
- (19) ‘label’ means any document, certificate or attestation confirming that the works, products, services, processes or procedures in question meet certain requirements;
- (20) ‘label requirements’ means the requirements to be met by the works, products, services, processes or procedures in question in order to obtain the label concerned.
Article 3
Contracting authorities
For the purpose of this Directive ‘contracting authorities’ means State, regional or local authorities, bodies governed by public law or associations formed by one or more such authorities or one or more such bodies governed by public law.
‘Regional authorities’ includes all authorities of the administrative units, listed non-exhaustively in NUTS 1 and 2, as referred to in Regulation (EC) No 1059/2003 of the European Parliament and of the Council ([^E0001]).
‘Local authorities’ includes all authorities of the administrative units falling under NUTS 3 and smaller administrative units, as referred to in Regulation (EC) No 1059/2003.
‘Bodies governed by public law’ means bodies that have all of the following characteristics:
- (a) they are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;
- (b) they have legal personality; and
- (c) they are financed, for the most part, by the State, regional or local authorities, or by other bodies governed by public law; or are subject to management supervision by those authorities or bodies; or which have an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law.
Article 4
Contracting entities
For the purpose of this Directive contracting entities are entities, which:
- (a) are contracting authorities or public undertakings and which pursue one of the activities referred to in Articles 8 to 14;
- (b) when they are not contracting authorities or public undertakings, have as one of their activities any of the activities referred to in Articles 8 to 14, or any combination thereof and operate on the basis of special or exclusive rights granted by a competent authority of a Member State.
‘Public undertaking’ means any undertaking over which the contracting authorities may exercise directly or indirectly a dominant influence by virtue of their ownership of it, their financial participation therein, or the rules which govern it.
A dominant influence on the part of the contracting authorities shall be presumed in any of the following cases in which those authorities, directly or indirectly:
- (a) hold the majority of the undertaking’s subscribed capital;
- (b) control the majority of the votes attaching to shares issued by the undertaking,
- (c) can appoint more than half of the undertaking’s administrative, management or supervisory body.
For the purposes of this Article, ‘special or exclusive rights’ means rights granted by a competent authority of a Member State by way of any legislative, regulatory or administrative provision the effect of which is to limit the exercise of activities defined in Articles 8 to 14 to one or more entities, and which substantially affects the ability of other entities to carry out such activity.
Rights which have been granted by means of a procedure in which adequate publicity has been ensured and where the granting of those rights was based on objective criteria shall not constitute special or exclusive rights within the meaning of the first subparagraph.
Such procedures include:
- (a) procurement procedures with a prior call for competition in conformity with Directive 2014/24/EU, Directive 2009/81/EC, Directive 2014/23/EU or this Directive;
- (b) procedures pursuant to other legal acts of the Union listed in Annex II, ensuring adequate prior transparency for granting authorisations on the basis of objective criteria.
The Commission shall be empowered to adopt delegated acts in accordance with Article 103 concerning the modification of the list of Union legal acts set out in Annex II, when on the basis of the adoption of new legal acts, repeal or modification of such legal acts, such amendments prove necessary.
Article 5
Mixed procurement covering the same activity
Paragraph 2 shall apply to mixed contracts which have as their subject-matter different types of procurement all of which are covered by this Directive.
Paragraphs 3 to 5 shall apply to mixed contracts which have as their subject-matter procurement covered by this Directive and procurement covered by other legal regimes.
Contracts which have as their subject-matter two or more types of procurement (works, services or supplies) shall be awarded in accordance with the provisions applicable to the type of procurement that characterises the main subject of the contract in question.
In the case of mixed contracts consisting partly of services within the meaning of Chapter I of Title III and partly of other services or of mixed contracts consisting partly of services and partly of supplies, the main subject shall be determined in accordance with which of the estimated values of the respective services or supplies is the highest.
Where the different parts of a given contract are objectively separable, paragraph 4 shall apply. Where the different parts of a given contract are objectively not separable, paragraph 5 shall apply.
Where part of a given contract is covered by Article 346 TFEU or Directive 2009/81/EC Article 25 of this Directive shall apply.
In the case of contracts which have as their subject-matter procurement covered by this Directive as well as procurement not covered by this Directive, contracting entities may choose to award separate contracts for the separate parts or to award a single contract. Where contracting entities choose to award separate contracts for separate parts, the decision as to which legal regime applies to any one of such separate contracts shall be taken on the basis of the characteristics of the separate part concerned.
Where contracting entities choose to award a single contract, this Directive shall, unless otherwise provided in Article 25, apply to the ensuing mixed contract, irrespective of the value of the parts that would otherwise fall under a different legal regime and irrespective of which legal regime those parts would otherwise have been subject to.
In the case of mixed contracts containing elements of supply, works and service contracts and of concessions, the mixed contract shall be awarded in accordance with this Directive, provided that the estimated value of the part of the contract which constitutes a contract covered by this Directive, calculated in accordance with Article 16, is equal to or greater than the relevant threshold set out in Article 15.
Where the different parts of a given contract are objectively not separable, the applicable legal regime shall be determined on the basis of the main subject-matter of that contract.
Article 6
Procurement covering several activities
In the case of contracts intended to cover several activities, contracting entities may choose to award separate contracts for the purposes of each separate activity or to award a single contract. Where contracting entities choose to award separate contracts, the decision as to which rules apply to any one of such separate contracts shall be taken on the basis of the characteristics of the separate activity concerned.
Notwithstanding Article 5, where contracting entities choose to award a single contract, paragraphs 2 and 3 of this Article shall apply. However, where one of the activities concerned is covered by Article 346 TFEU or Directive 2009/81/EC, Article 26 of this Directive shall apply.
The choice between awarding a single contract or awarding a number of separate contracts shall not, however, be made with the objective of excluding the contract or contracts from the scope of application either of this Directive or, where applicable, Directive 2014/24/EU or Directive 2014/23/EU.
A contract which is intended to cover several activities shall be subject to the rules applicable to the activity for which it is principally intended.
In the case of contracts for which it is objectively impossible to determine for which activity the contract is principally intended, the applicable rules shall be determined in accordance with points (a), (b), and (c):
- (a) the contract shall be awarded in accordance with Directive 2014/24/EU, if one of the activities for which the contract is intended is subject to this Directive and the other to Directive 2014/24/EU;
- (b) the contract shall be awarded in accordance with this Directive, if one of the activities for which the contract is intended is subject to this Directive and the other to Directive 2014/23/EU;
- (c) the contract shall be awarded in accordance with this Directive, if one of the activities for which the contract is intended is subject to this Directive and the other is not subject to either this Directive, Directive 2014/24/EU or 2014/23/EU.
CHAPTER II Activities
Article 7
Common provisions
For the purposes of Articles 8, 9 and 10, ‘supply’ shall include generation/production, wholesale and retail sale.
However, production of gas in the form of extraction falls within the scope of Article 14.
Article 8
Gas and heat
As far as gas and heat are concerned, this Directive shall apply to the following activities:
- (a) the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of gas or heat;
- (b) the supply of gas or heat to such networks.
The supply, by a contracting entity other than a contracting authority, of gas or heat to fixed networks which provide a service to the public shall not be considered to be a relevant activity within the meaning of paragraph 1 where all of the following conditions are met:
- (a) the production of gas or heat by that contracting entity is the unavoidable consequence of carrying out an activity other than those referred to in paragraph 1 of this Article or in Articles 9 to 11;
- (b) the supply to the public network is aimed only at the economic exploitation of such production and amounts to not more than 20 % of the contracting entity’s turnover on the basis of the average for the preceding three years, including the current year.
Article 9
Electricity
As far as electricity is concerned, this Directive shall apply to the following activities:
- (a) the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of electricity;
- (b) the supply of electricity to such networks.
The supply, by a contracting entity other than a contracting authority, of electricity to fixed networks which provide a service to the public shall not be considered to be a relevant activity within the meaning of paragraph 1 where all of the following conditions are met:
- (a) the production of electricity by that contracting entity takes place because its consumption is necessary for carrying out an activity other than those referred to in paragraph 1 of this Article or in Articles 8, 10 and 11;
- (b) supply to the public network depends only on that contracting entity’s own consumption and has not exceeded 30 % of that contracting entity’s total production of energy, on the basis of the average for the preceding three years, including the current year.
Article 10
Water
As far as water is concerned, this Directive shall apply to the following activities:
- (a) the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of drinking water;
- (b) the supply of drinking water to such networks.
This Directive shall also apply to contracts or design contests awarded or organised by contracting entities which pursue an activity referred to in paragraph 1 and which are connected with one of the following:
- (a) hydraulic engineering projects, irrigation or land drainage, provided that the volume of water to be used for the supply of drinking water represents more than 20 % of the total volume of water made available by such projects or irrigation or drainage installations,
- (b) the disposal or treatment of sewage.
The supply, by a contracting entity other than a contracting authority, of drinking water to fixed networks which provide a service to the public shall not be considered to be a relevant activity within the meaning of paragraph 1 where all of the following conditions are met:
- (a) the production of drinking water by that contracting entity concerned takes place because its consumption is necessary for carrying out an activity other than those referred to in Articles 8 to 11;
- (b) the supply to the public network depends only on that contracting entity’s own consumption and has not exceeded 30 % of that contracting entity’s total production of drinking water, on the basis of the average for the preceding three years, including the current year.
Article 11
Transport services
This Directive shall apply to activities relating to the provision or operation of networks providing a service to the public in the field of transport by railway, automated systems, tramway, trolley bus, bus or cable.
As regards transport services, a network shall be considered to exist where the service is provided under operating conditions laid down by a competent authority of a Member State, such as conditions on the routes to be served, the capacity to be made available or the frequency of the service.
Article 12
Ports and airports
This Directive shall apply to activities relating to the exploitation of a geographical area for the purpose of the provision of airports and maritime or inland ports or other terminal facilities to carriers by air, sea or inland waterway.
Article 13
Postal services
This Directive shall apply to activities relating to the provision of:
- (a) postal services;
- (b) other services than postal services, on condition that such services are provided by an entity which also provides postal services within the meaning of point (b) of paragraph 2 of this Article and provided that the conditions set out in Article 34(1) are not satisfied in respect of the services falling within point (b) of paragraph 2 of this Article.
For the purpose of this Article and without prejudice to Directive 97/67/EC of the European Parliament and of the Council ([^E0002]):
- (a) ‘postal item’ means an item addressed in the final form in which it is to be carried, irrespective of weight. In addition to items of correspondence, such items also include for instance books, catalogues, newspapers, periodicals and postal packages containing merchandise with or without commercial value, irrespective of weight;
- (b) ‘postal services’ means services consisting of the clearance, sorting, routing and delivery of postal items. This shall include both services falling within as well as services falling outside the scope of the universal service set up in conformity with Directive 97/67/EC;
- (c) ‘other services than postal services’ means services provided in the following areas:
- (i) mail service management services (services both preceding and subsequent to despatch, including mailroom management services);
- (ii) services concerning postal items not included in point (a), such as direct mail bearing no address.
Article 14
Extraction of oil and gas and exploration for, or extraction of, coal or other solid fuels
This Directive shall apply to activities relating to the exploitation of a geographical area for the purpose of:
- (a) extracting oil or gas;
- (b) exploring for, or extracting, coal or other solid fuels.
CHAPTER III Material scope
Section 1 Thresholds
Article 15
Threshold amounts
Save where they are ruled out by the exclusions in Articles 18 to 23 or pursuant to Article 34, concerning the pursuit of the activity in question, this Directive shall apply to procurements with a value net of value-added tax (VAT) estimated to be equal to or greater than the following thresholds:
- (a) EUR 432 000 for supply and service contracts as well as for design contests;
- (b) EUR 5 404 000 for works contracts;
- (c) EUR 1 000 000 for service contracts for social and other specific services listed in Annex XVII.
Article 16
Methods for calculating the estimated value of procurement
The calculation of the estimated value of a procurement shall be based on the total amount payable, net of VAT, as estimated by the contracting entity, including any form of option and any renewals of the contracts as explicitly set out in the procurement documents.
Where the contracting entity provides for prizes or payments to candidates or tenderers it shall take them into account when calculating the estimated value of the procurement.
Where a contracting entity is comprised of separate operational units, account shall be taken of the total estimated value for all the individual operational units.
Notwithstanding the first subparagraph, where a separate operational unit is independently responsible for its procurement or certain categories thereof, the values may be estimated at the level of the unit in question.
The choice of the method used to calculate the estimated value of a procurement shall not be made with the intention of excluding it from the scope of this Directive. A procurement shall not be subdivided with the effect of preventing it from falling within the scope of this Directive, unless justified by objective reasons.
That estimated value shall be valid at the moment at which the call for competition is sent or, in cases where such call for competition is not foreseen, at the moment at which the contracting entity commences the contract procurement procedure, for instance, where appropriate, by contacting economic operators in relation to the procurement.
With regard to framework agreements and dynamic purchasing systems, the value to be taken into consideration shall be the maximum estimated value net of VAT of all the contracts envisaged for the total term of the agreement or system.
In the case of innovation partnerships, the value to be taken into consideration shall be the maximum estimated value net of VAT of the research and development activities to take place during all stages of the envisaged partnership as well as of the supplies, services or works to be developed and procured at the end of the envisaged partnership.
For the purposes of Article 15, contracting entities shall include in the estimated value of a works contract both the cost of the works and the total estimated value of any supplies or services that are made available to the contractor by the contracting entities provided that they are necessary for the execution of the works.
Where a proposed work or a proposed provision of services may result in contracts being awarded in the form of separate lots, account shall be taken of the total estimated value of all such lots.
Where the aggregate value of the lots is equal to or exceeds the threshold laid down in Article 15, this Directive shall apply to the awarding of each lot.
Where a proposal for the acquisition of similar supplies may result in contracts being awarded in the form of separate lots, account shall be taken of the total estimated value of all such lots when applying points (b) and (c) of Article 15.
Where the aggregate value of the lots is equal to or exceeds the threshold laid down in Article 15, this Directive shall apply to the awarding of each lot.
Notwithstanding paragraphs 8 and 9, contracting entities may award contracts for individual lots without applying the procedures provided for under this Directive, provided that the estimated value net of VAT of the lot concerned is less than EUR 80 000 for supplies or services or EUR 1 million for works. However, the aggregate value of the lots thus awarded without applying this Directive shall not exceed 20 % of the aggregate value of all the lots into which the proposed work, the proposed acquisition of similar supplies or the proposed provision of services has been divided.
In the case of supply or service contracts which are regular in nature or which are intended to be renewed within a given period, the calculation of the estimated contract value shall be based on the following:
- (a) either the total actual value of the successive contracts of the same type awarded during the preceding 12 months or financial year adjusted, where possible, to take account of the changes in quantity or value which would occur in the course of the 12 months following the initial contract;
- (b) or the total estimated value of the successive contracts awarded during the 12 months following the first delivery, or during the financial year where that is longer than 12 months.
With regard to supply contracts relating to the leasing, hire, rental or hire purchase of products, the value to be taken as a basis for calculating the estimated contract value shall be as follows:
- (a) in the case of fixed-term contracts, if that term is less than or equal to 12 months, the total estimated value for the term of the contract or, where the term of the contract is greater than 12 months, the total value including the estimated residual value;
- (b) in the case of contracts without a fixed term or the term of which cannot be defined, the monthly value multiplied by 48.
With regard to service contracts, the basis for calculating the estimated contract value shall, where appropriate, be the following:
- (a) insurance services: the premium payable, and other forms of remuneration;
- (b) banking and other financial services: the fees, commissions payable, interest and other forms of remuneration;
- (c) design contracts: fees, commissions payable and other forms of remuneration.
With regard to service contracts which do not indicate a total price, the basis for calculating the estimated contract value shall be the following:
- (a) in the case of fixed-term contracts, where that term is less than or equal to 48 months: the total value for their full term;
- (b) in the case of contracts without a fixed term or with a term greater than 48 months: the monthly value multiplied by 48.
Article 17
Revision of the thresholds
Every two years from 30 June 2013, the Commission shall verify that the thresholds set out in points (a) and (b) of Article 15 correspond to the thresholds established in the World Trade Organisation Agreement on Government Procurement (GPA) and shall, where necessary, revise them in accordance with this Article.
In accordance with the calculation method set out in the GPA, the Commission shall calculate the value of those thresholds on the basis of the average daily value of the euro in terms of the special drawing rights (SDRs), over a period of 24 months terminating on 31 August preceding the revision with effect from 1 January. The value of the thresholds thus revised shall, where necessary, be rounded down to the nearest thousand euros so as to ensure that the thresholds in force provided for by the GPA, expressed in SDRs, are observed.
Every two years from 1 January 2014, the Commission shall determine the values, in the national currencies of Member States, whose currency is not the euro, of the thresholds referred to in points (a) and (b) of Article 15, revised pursuant to paragraph 1 of this Article.
At the same time, the Commission shall determine the value, in the national currencies of the Member States, whose currency is not the euro, of the threshold referred to in point (c) of Article 15.
In accordance with the calculation method set out in the GPA, the determination of such values shall be based on the average daily values of those currencies, corresponding to the applicable threshold expressed in euros over the 24 months terminating on 31 August preceding the revision with effect from 1 January.
The Commission shall publish the revised thresholds referred to in paragraph 1, their corresponding values in the national currencies referred to in the first subparagraph of paragraph 2, and the value determined in accordance with the second subparagraph of paragraph 2 in the Official Journal of the European Union at the beginning of the month of November following their revision.
The Commission shall be empowered to adopt delegated acts in accordance with Article 103 to adapt the methodology set out in the second subparagraph of paragraph 1 of this Article to any change in the methodology provided in the GPA for the revision of the thresholds referred to in points (a) and (b) of Article 15 and for the determination of the corresponding values in the national currencies of the Member States, whose currency is not the euro, as referred to in paragraph 2 of this Article.
The Commission shall be empowered to adopt delegated acts in accordance with Article 103 to revise the thresholds referred to in points (a) and (b) of Article 15 when necessary.
Where it is necessary to revise the thresholds referred to in points (a) and (b) of Article 15 and time constraints prevent the use of the procedure set in Article 103 and therefore imperative grounds of urgency so require, the procedure provided for in Article 104 shall apply to delegated acts adopted pursuant to the second subparagraph of paragraph 4 of this Article.
Section 2 Excluded contracts and design contests; special provisions for procurement involving defence and security aspects
Subsection 1 Exclusions applicable to all contracting entities and special exclusions for the water and energy sectors
Article 18
Contracts awarded for purposes of resale or lease to third parties
This Directive shall not apply to contracts awarded for purposes of resale or lease to third parties, provided that the contracting entity enjoys no special or exclusive right to sell or lease the subject of such contracts, and other entities are free to sell or lease it under the same conditions as the contracting entity.
The contracting entities shall notify the Commission if so requested of all the categories of products or activities which they regard as excluded under paragraph 1. The Commission may periodically publish in the Official Journal of the European Union, for information purposes, of lists of the categories of products and activities which it considers to be covered by this exclusion. In so doing, the Commission shall respect any sensitive commercial aspects that the contracting entities may point out when forwarding information.
Article 19
Contracts and design contests awarded or organised for purposes other than the pursuit of a covered activity or for the pursuit of such an activity in a third country
This Directive shall not apply to contracts which the contracting entities award for purposes other than the pursuit of their activities as described in Articles 8 to 14 or for the pursuit of such activities in a third country, in conditions not involving the physical use of a network or geographical area within the Union nor shall it apply to design contests organised for such purposes.
The contracting entities shall notify the Commission, if so requested, of any activities which they regard as excluded under paragraph 1. The Commission may periodically publish in the Official Journal of the European Union, for information purposes, lists of the categories of activities which it considers to be covered by this exclusion. In so doing, the Commission shall respect any sensitive commercial aspects that the contracting entities may point out when forwarding this information.
Article 20
Contracts awarded and design contests organised pursuant to international rules
This Directive shall not apply to contracts or design contests which the contracting entity is obliged to award or organise in accordance with procurement procedures different from those laid down in this Directive established by any of the following:
- (a) a legal instrument creating international law obligations, such as an international agreement, concluded in accordance with the Treaties, between a Member State and one or more third countries or subdivisions thereof and covering works, supplies or services intended for the joint implementation or exploitation of a project by their signatories;
- (b) an international organisation.
Member States shall communicate all legal instruments referred to in point (a) of the first subparagraph of this paragraph to the Commission, which may consult the Advisory Committee for Public Contracts referred to in Article 105.
This Directive shall not apply to contracts and design contests which the contracting entity awards or organises in accordance with procurement rules provided by an international organisation or international financing institution, where the contracts or design contests concerned are fully financed by that organisation or institution; in the case of contracts or design contests co-financed the most part by an international organisation or international financing institution the parties shall agree on applicable procurement procedures.
Article 27 shall apply to contracts and design contests involving defence or security aspects which are awarded or organised pursuant to international rules. Paragraphs 1 and 2 of this Article shall not apply to those contracts and design contests.
Article 21
Specific exclusions for service contracts
This Directive shall not apply to service contracts for:
- (a) the acquisition or rental, by whatever financial means, of land, existing buildings or other immovable property or concerning rights thereon;
- (b) arbitration and conciliation services;
- (c) any of the following legal services:
- (i) legal representation of a client by a lawyer within the meaning of Article 1 of Council Directive 77/249/EEC ([^E0003]) in:
- — an arbitration or conciliation held in a Member State, a third country or before an international arbitration or conciliation instance; or
- — judicial proceedings before the courts, tribunals or public authorities of a Member State or a third country or before international courts, tribunals or institutions;
- (ii) legal advice given in preparation of any of the proceedings referred to in point (i) of this point or where there is a tangible indication and high probability that the matter to which the advice relates will become the subject of such proceedings, provided that the advice is given by a lawyer within the meaning of Article 1 of Directive 77/249/EEC;
- (iii) document certification and authentication services which must be provided by notaries;
- (iv) legal services provided by trustees or appointed guardians or other legal services the providers of which are designated by a court or tribunal in the Member State concerned or are designated by law to carry out specific tasks under the supervision of such tribunals or courts;
- (v) other legal services which in the Member State concerned are connected, even occasionally, with the exercise of official authority;
- (d) financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments within the meaning of Directive 2004/39/EC of the European Parliament and of the Council ([^E0004]) and operations conducted with the European Financial Stability Facility and the European Stability Mechanism;
- (e) loans, whether or not in connection with the issue, sale, purchase or transfer of securities or other financial instruments;
- (f) employment contracts;
- (g) public passenger transport services by rail or metro;
- (h) civil defence, civil protection, and danger prevention that are provided by non-profit organisations or associations, and which are covered by CPV codes 75250000-3, 75251000-0, 75251100-1, 75251110-4, 75251120-7, 75252000-7, 75222000-8; 98113100-9 and 85143000-3 except patient transport ambulance services;
- (i) contracts for broadcasting time or programme provision that are awarded to audiovisual or radio media service providers. For the purposes of this point, ‘media service providers’ shall have the same meaning as pursuant to point (d) of Article 1(1) of Directive 2010/13/EU of the European Parliament and of the Council ([^E0005]). ‘Programme’ shall have the same meaning as pursuant to point (b) of Article 1(1) of that Directive, but shall also include radio programmes and radio programme materials. Furthermore, for the purposes of this provision, ‘programme material’ shall have the same meaning as ‘programme’.
Article 22
Service contracts awarded on the basis of an exclusive right
This Directive shall not apply to service contracts awarded to an entity which is itself a contracting authority or to an association of contracting authorities on the basis of an exclusive right which they enjoy pursuant to a law, regulation or published administrative provision which is compatible with the TFEU.
Article 23
Contracts awarded by certain contracting entities for the purchase of water and for the supply of energy or of fuels for the production of energy
This Directive shall not apply:
- (a) to contracts for the purchase of water if awarded by contracting entities engaged in one or both of the activities relating to drinking water referred to in Article 10(1);
- (b) to contracts awarded by contracting entities themselves being active in the energy sector by being engaged in an activity referred to in Article 8(1), Article 9(1) or Article 14 for the supply:
- (i) of energy;
- (ii) of fuels for the production of energy.
Subsection 2 Procurement involving defence and security aspects
Article 24
Defence and security
In respect of contracts awarded and design contests organised in the fields of defence and security, this Directive shall not apply to:
- (a) contracts falling within the scope of Directive 2009/81/EC;
- (b) contracts to which Directive 2009/81/EC does not apply pursuant to Articles 8, 12 and 13 thereof.
This Directive shall not apply to contracts and design contests not otherwise exempted under paragraph 1, to the extent that the protection of the essential security interests of a Member State cannot be guaranteed by less intrusive measures, for instance by imposing requirements aimed at protecting the confidential nature of information which the contracting entity makes available in a contract award procedure as provided for in this Directive.
Furthermore, and in conformity with point (a) Article 346(1) TFEU, this Directive shall not apply to contracts and design contests not otherwise exempted under paragraph 1 of this Article to the extent that the application of this Directive would oblige a Member State to supply information the disclosure of which it considers contrary to the essential interests of its security.
Where the procurement and performance of the contract or design contest are declared to be secret or must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in a Member State, this Directive shall not apply provided that the Member State has determined that the essential interests concerned cannot be guaranteed by less intrusive measures, such as those referred to in the first subparagraph of paragraph 2.
Article 25
Mixed procurement covering the same activity and involving defence or security aspects
In the case of mixed contracts covering the same activity which have as their subject-matter procurement covered by this Directive and procurement or other elements covered by Article 346 TFEU or Directive 2009/81/EC, this Article shall apply.
Where the different parts of a given contract are objectively separable, contracting entities may choose to award separate contracts for the separate parts or to award a single contract.
Where contracting entities choose to award separate contracts for separate parts, the decision of which legal regime applies to any one of such separate contracts shall be taken on the basis of the characteristics of the separate part concerned.
Where contracting entities choose to award a single contract, the following criteria shall apply to determine the applicable legal regime:
- (a) where part of a given contract is covered by Article 346 TFEU, the contract may be awarded without applying this Directive, provided that the award of a single contract is justified for objective reasons;
- (b) where part of a given contract is covered by Directive 2009/81/EC, the contract may be awarded in accordance with that Directive, provided that the award of a single contract is justified for objective reasons. This point shall be without prejudice to the thresholds and exclusions for which that Directive provides.
The decision to award a single contract shall not, however, be taken for the purpose of excluding contracts from the application of either this Directive or Directive 2009/81/EC.
Point (a) of the third subparagraph of paragraph 2 shall apply to mixed contracts to which both point (a) and point (b) of that subparagraph could otherwise apply.
Where the different parts of a given contract are objectively not separable, the contract may be awarded without applying this Directive where it includes elements to which Article 346 TFEU applies; otherwise it may be awarded in accordance with Directive 2009/81/EC.
Article 26
Procurement covering several activities and involving defence or security aspects
In the case of contracts intended to cover several activities, contracting entities may choose to award separate contracts for the purposes of each separate activity or to award a single contract. Where contracting entities choose to award separate contracts for separate parts, the decision of which legal regime applies to any one of such separate contracts shall be taken on the basis of the characteristics of the separate activity concerned.
Where contracting entities choose to award a single contract, paragraph 2 of this Article shall apply. The choice between awarding a single contract and awarding a number of separate contracts shall not be made with the objective of excluding the contract or contracts from the scope of this Directive or Directive 2009/81/EC.
In the case of contracts intended to cover an activity which is subject to this Directive and another which is:
- (a) subject to Directive 2009/81/EC, or
- (b) covered by Article 346 TFEU,
the contract may be awarded in accordance with Directive 2009/81/EC in the cases set out under point (a) and may be awarded without applying this Directive in the cases set out under point (b). This subparagraph is without prejudice to the thresholds and exclusions for which Directive 2009/81/EC provides.
Contracts as set out under point (a) of the first subparagraph, which in addition include procurement or other elements which are covered by Article 346 TFEU, may be awarded without applying this Directive.
However, it is a condition for the application of the first and second subparagraph that the award of a single contract is justified for objective reasons and the decision to award a single contract is not taken for the purpose of excluding contracts from the application of this Directive.
Article 27
Contracts and design contests involving defence or security aspects which are awarded or organised pursuant to international rules
This Directive shall not apply to contracts or design contests involving defence or security aspects which the contracting entity is obliged to award or organise in accordance with procurement procedures different from those laid down in this Directive established by any of the following:
- (a) an international agreement or arrangement, concluded in accordance with the Treaties, between a Member State and one or more third countries or subdivisions thereof and covering works, supplies or services intended for the joint implementation or exploitation of a project by their signatories;
- (b) an international agreement or arrangement relating to the stationing of troops and concerning the undertakings of a Member State or a third country;
- (c) an international organisation.
All agreements or arrangements referred to in point (a) of the first subparagraph of this paragraph shall be communicated to the Commission, which may consult the Advisory Committee on Public Procurement referred to in Article 105.
This Directive shall not apply to contracts and design contests involving defence or security aspects which the contracting entity awards in accordance with procurement rules provided by an international organisation or international financing institution, where the contracts or design contests concerned are fully financed by this organisation or institution. In the case of contracts or design contests co-financed for the most part by an international organisation or international financing institution the parties shall agree on applicable procurement procedures.
Subsection 3 Special relations (cooperation, affiliated undertakings and joint ventures)
Article 28
Contracts between contracting authorities
A contract awarded by a contracting authority to a legal person governed by private or public law shall fall outside the scope of this Directive where all of the following conditions are fulfilled:
- (a) the contracting authority exercises over the legal person concerned a control which is similar to that which it exercises over its own departments;
- (b) more than 80 % of the activities of the controlled legal person are carried out in the performance of tasks entrusted to it by the controlling contracting authority or by other legal persons controlled by that contracting authority;
- (c) there is no direct private capital participation in the controlled legal person with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on the controlled legal person.
A contracting authority shall be deemed to exercise over a legal person a control similar to that which it exercises over its own departments within the meaning of point (a) of the first subparagraph where it exercises a decisive influence over both strategic objectives and significant decisions of the controlled legal person. Such control may also be exercised by another legal person, which is itself controlled in the same way by the contracting authority.
Paragraph 1 also applies where a controlled person which is a contracting authority awards a contract to its controlling contracting authority, or to another legal person controlled by the same contracting authority, provided that there is no direct private capital participation in the legal person being awarded the public contract with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on the controlled legal person.
A contracting authority, which does not exercise over a legal person governed by private or public law control within the meaning of paragraph 1, may nevertheless award a contract to that legal person without applying this Directive, where all of the following conditions are fulfilled:
- (a) the contracting authority exercises jointly with other contracting authorities a control over that legal person which is similar to that which they exercise over their own departments;
- (b) more than 80 % of the activities of that legal person are carried out in the performance of tasks entrusted to it by the controlling contracting authorities or by other legal persons controlled by the same contracting authorities; and
- (c) there is no direct private capital participation in the controlled legal person with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on the controlled legal person.
For the purposes of point (a) of the first subparagraph, contracting authorities shall be deemed to exercise joint control over a legal person where all of the following conditions are fulfilled:
- (i) the decision-making bodies of the controlled legal person are composed of representatives of all participating contracting authorities. Individual representatives may represent several or all of the participating contracting authorities;
- (ii) those contracting authorities are able to jointly exert decisive influence over the strategic objectives and significant decisions of the controlled legal person; and
- (iii) the controlled legal person does not pursue any interests which are contrary to those of the controlling contracting authorities.
A contract concluded exclusively between two or more contracting authorities shall fall outside the scope of this Directive, where all of the following conditions are met:
- (a) the contract establishes or implements a cooperation between the participating contracting authorities with the aim of ensuring that public services they have to perform are provided with a view to achieving objectives they have in common;
- (b) the implementation of that cooperation is governed solely by considerations relating to the public interest; and
- (c) the participating contracting authorities perform on the open market less than 20 % of the activities concerned by the cooperation.
For the determination of the percentage of activities referred to in point (b) of the first subparagraph of paragraph 1, point (b) of the first subparagraph of paragraph 3 and point (c) of paragraph 4, the average total turnover, or an appropriate alternative activity based measure such as costs incurred by the relevant legal person with respect to services, supplies and works for the three years preceding the contract award shall be taken into consideration.
Where, because of the date on which the relevant legal person was created or commenced activities or because of a reorganisation of its activities, the turnover, or alternative activity based measure such as costs, are either not available for the preceding three years or no longer relevant, it shall be sufficient to show that the measurement of activity is credible, particularly by means of business projections.
Article 29
Contracts awarded to an affiliated undertaking
For the purposes of this Article, ‘affiliated undertaking’ means any undertaking the annual accounts of which are consolidated with those of the contracting entity in accordance with the requirements of the Directive 2013/34/EU.
In the case of entities, which are not subject to Directive 2013/34/EU, ‘affiliated undertaking’ shall mean any undertaking that:
- (a) may be, directly or indirectly, subject to a dominant influence by the contracting entity;
- (b) may exercise a dominant influence over the contracting entity; or
- (c) in common with the contracting entity, is subject to the dominant influence of another undertaking by virtue of ownership, financial participation, or the rules which govern it.
For the purposes of this paragraph, ‘dominant influence’ shall have the same meaning as in the second subparagraph of Article 4(2).
Notwithstanding Article 28 and provided that the conditions in paragraph 4 of this Article are met, this Directive shall not apply to contracts awarded:
- (a) by a contracting entity to an affiliated undertaking, or
- (b) by a joint venture, formed exclusively by a number of contracting entities for the purpose of carrying out activities described in Articles 8 to 14, to an undertaking which is affiliated with one of those contracting entities.
Paragraph 3 shall apply to:
- (a) service contracts provided that at least 80 % of the average total turnover of the affiliated undertaking over the preceding three years, taking into account all services provided by that undertaking, derives from the provision of services to the contracting entity or other undertakings with which it is affiliated;
- (b) supply contracts provided that at least 80 % of the average total turnover of the affiliated undertaking, taking into account all supplies provided by that undertaking, over the preceding three years derives from the provision of supplies to the contracting entity or other undertakings with which it is affiliated;
- (c) to works contracts provided that at least 80 % of the average total turnover of the affiliated undertaking, taking into account all works provided by that undertaking, over the preceding three years derives from the provision of works to the contracting entity or other undertakings with which it is affiliated.
Where, because of the date on which an affiliated undertaking was created or commenced activities, the turnover is not available for the preceding three years, it shall be sufficient for that undertaking to show that the turnover referred to in points (a), (b) or (c) of paragraph 4 is credible, in particular by means of business projections.
Where more than one undertaking affiliated with the contracting entity with which they form an economic group provides the same or similar services, supplies or works, the percentages shall be calculated taking into account the total turnover deriving respectively from the provision of services, supplies or works by those affiliated undertakings.
Article 30
Contracts awarded to a joint venture or to a contracting entity forming part of a joint venture
Notwithstanding Article 28 and provided that the joint venture has been set up in order to carry out the activity concerned over a period of at least three years and that the instrument setting up the joint venture stipulates that the contracting entities, which form it, will be part thereof for at least the same period, this Directive shall not apply to contracts awarded by any of the following:
- (a) by a joint venture, formed exclusively by a number of contracting entities for the purpose of carrying out activities within the meaning of Articles 8 to 14, to one of those contracting entities; or
- (b) by a contracting entity to such a joint venture of which it forms part.
Article 31
Notification of information
Contracting entities shall notify to the Commission, if so requested, the following information regarding the application of Article 29(2) and (3) and Article 30:
- (a) the names of the undertakings or joint ventures concerned,
- (b) the nature and value of the contracts involved,
- (c) proof deemed necessary by the Commission that the relationship between the undertaking or joint venture to which the contracts are awarded and the contracting entity complies with the requirements of Articles 29 or 30.
Subsection 4 Specific situations
Article 32
Research and development services
This Directive shall only apply to service contracts for research and development services which are covered by CPV codes 73000000-2 to 73120000-9, 73300000-5, 73420000-2 and 73430000-5 provided that both of the following conditions are fulfilled:
- (a) the benefits accrue exclusively to the contracting entity for its use in the conduct of its own affairs, and
- (b) the service provided is wholly remunerated by the contracting entity.
Article 33
Contracts subject to special arrangements
Without prejudice to Article 34 of this Directive the Republicof Austriaand the Federal Republic of Germany shall ensure, by way of the conditions of authorisation or other appropriate measures, that any entity operating in the sectors mentioned in Commission Decision ([^E0006]) 2002/205/EC and Commission Decision 2004/73/EC ([^E0007]):
- (a) observes the principles of non-discrimination and competitive procurement in respect of the award of supplies, works and service contracts, in particular as regards the information which the entity makes available to economic operators concerning its procurement intentions;
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